Date: 20040511
Docket: IMM-2733-03
Citation: 2004 FC 685
Ottawa, Ontario, Tuesday, the 11th day of May 2004
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
JAIMATTIE SULAIMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Jaimattie Sulaiman is a citizen of Guyana who entered Canada on July 22, 2001 pursuant to a valid multiple entry visitor's visa. On December 26, 2001, she married a Canadian citizen or permanent resident, (the Tribunal Record is not clear on this point but nothing turns on the distinction). In March of 2002 her husband sponsored Ms. Sulaiman's application from within Canada for landed immigrant status.
[2] Thereafter, Ms. Sulaiman sought, and on September 11, 2002 obtained, an extension of her visitor's status in Canada until February 28, 2003. The extension was sought so Ms. Sulaiman could remain in Canada with her husband while her application for permanent residence was processed.
[3] In February of 2003, her application for permanent residence was still being processed. Therefore, Ms. Sulaiman applied for a further extension of her temporary residence status as a visitor, again on the ground that she wished to remain in Canada with her husband until the processing of her application for landing was completed. This time her application for an extension was rejected.
[4] This application for judicial review is brought in respect of that refusal.
[5] As to the applicable legislative scheme, a temporary resident may apply to extend his or her status in Canada if the temporary resident satisfies certain conditions set out in section 181 of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("Regulations"). That section is as follows:
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181. (1) A foreign national may apply for an extension of their authorization to remain in Canada as a temporary resident if
(a) the application is made by the end of the period authorized for their stay; and
(b) they have complied with all conditions imposed on their entry into Canada.
Extension
(2) An officer shall extend the foreign national's authorization to remain in Canada as a temporary resident if, following an examination, it is established that the foreign national continues to meet the requirements of section 179. |
181. (1) L'étranger peut demander la prolongation de son autorisation de séjourner à titre de résident temporaire si, à la fois :
a) il en fait la demande à l'intérieur de sa période de séjour autorisée;
b) il s'est conformé aux conditions qui lui ont été imposées à son entrée au Canada.
Prolongation
(2) L'agent prolonge l'autorisation de séjourner à titre de résident temporaire de l'étranger si, à l'issue d'un contrôle, celui-ci satisfait toujours aux exigences prévues à l'article 179.
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[6] Section 179, referred to in section 181 of the Regulations is as follows:
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179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
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179. L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis :
a) l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; |
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(b) will leave Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
(d) meets the requirements applicable to that class;
(e) is not inadmissible; and
(f) meets the requirements of section 30. |
b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2;
c) il est titulaire d'un passeport ou autre document qui lui permet d'entrer dans le pays qui l'a délivré ou dans un autre pays;
d) il se conforme aux exigences applicables à cette catégorie;
e) il n'est pas interdit de territoire;
f) il satisfait aux exigences prévues à l'article 30. |
[7] The letter notifying Ms. Sulaiman of the refusal to grant an extension in its material part is as follows:
Your application, as requested, is refused for the following reason:
Any person wishing to extend their temporary resident status in Canada must satisfy an officer that they will leave Canada by the end of the period authorized for their stay, that they will not contravene the conditions of entry and that they do not belong in a category of persons inadmissible to Canada under the Immigration and Refugee Protection Act.
In reaching a decision, an officer considers several factors, which include:
- the applicant's travel and identity documents;
- the reason for travel to Canada and the reason for applying for the extension;
- the applicant's financial means for the extended stay and return home;
- the applicant's ties to his or her country of residence, including immigration status, employment and family ties;
- whether the applicant would be likely to leave Canada at the end of their authorised stay.
After considering all the circumstances of your case, I am not satisfied that you meet the requirements of the Act and Regulations. You must leave Canada on or before the expiry of your current document or, if your document has expired you must leave Canada immediately. Failure to do so could result in enforcement action being taken against you.
[8] The Tribunal Record sheds no further light on why Ms. Sulaiman's application for an extension was rejected and contains no information from which an officer could reasonably conclude that Ms. Sulaiman no longer met the statutory requirements of section 179 of the Regulations. Ms. Sulaiman obviously met those requirements on September 11, 2002 when she received the initial extension of her authorization to remain in Canada.
[9] Ms. Sulaiman has sworn an affidavit in this proceeding in which she reviews each of the requirements found in section 179 of the Regulations and sets out how it is that she meets each requirement. She was not cross-examined on that affidavit.
[10] No evidence was put before the Court by the officer who processed Ms. Sulaiman's application.
[11] On the particular fact of this case, including the absence of any information on the Tribunal Record which would justify the officer's apparent conclusion that Ms. Sulaiman no longer continued to meet the requirements of section 179 of the Regulations and including the absence of any reasons given for the officer's conclusion that the requirements of the legislation and Regulations were not met, I am left in real doubt as to whether Ms. Sulaiman's application was fairly assessed. As the Federal Court of Appeal discussed in Canada (Minister of Employment and Immigration) v. Singh (1987), 72 N.R. 227, if no reason or insufficient reasons are given by an officer, and if it is not otherwise possible to ascertain from the record on what ground the officer based his decision, the implication may be drawn that the officer based his decision on improper or irrelevant considerations or may have failed to take into account relevant factors. I draw this inference from the record before me. The application for judicial review is therefore allowed.
[12] Neither party posed a question for certification and no question arises on this record.
ORDER
[13] THIS COURT ORDERS THAT:
1. The application for judicial review is allowed and the decision refusing Ms. Sulaiman's request for an extension of temporary resident status dated March 13, 2003 is hereby set aside. The matter is remitted for re-determination by a different officer.
"Eleanor R. Dawson"
Judge
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-2733-03
STYLE OF CAUSE: JAIMATTIE SULAIMAN
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MAY 5, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: DAWSON J.
DATED: MAY 11, 2004
APPEARANCES BY:
Ms. Jaimattie Sulaiman
FOR THE APPLICANT (On her own behalf)
Ms. Neeta Logsetty
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ms. Jaimattie Sulaiman
Waterloo, Ontario
FOR THE APPLICANT (On her own behalf)
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT